Volume 138 — Missouri Appeal Reports

— Hon. John G. Park, Judge. (1) The court committed error in overruling defendant’s demurrer to plaintiff’s evidence. (2) The evidence does not prove or tend to prove that the negligence alleged in the petition was the proximate cause of the injury, hut leaves it to bare conjecture. (3) The evidence shows that plaintiff assumed the risk of injury arising from the work in which he was engaged at the time of the accident.

—Hon. Ghesley A. Mosman, Judge. (1) Instruction number 3 was correct. (2) Even if instruction number 3 were erroneous, defendant’s verdict should stand, because plaintiff made no case to go to the jury. Lomax v. Railroad, 119 Mo. App. 200, and cases cited; Meyer v. Pritchett, 178 Mo. 160; Smith v. Atchison Railroad Co., 122 Mo. App. 87; Parker v. Brit-ton, 133 Mo. App. 270. (1) Plaintiff was entitled to go to the jury.

— Hon. Haywood Scott, Judge. “Where there are two or more persons appointed co-executors in any -will, none shall have authority to act as such or intermeddle, except those who give bond. . . . Provided,' that in all cases where a testator by his last will and testament provided for the appointment of an executor, and requests that such executor shall not he required to give bond,” the giving of such bond shall be discretionary. E. S. 1899, sec. 12.

<p>1. TRIAL PRACTICE: Communication with Jury: New Trial. Á jury being called from tbeir room on inquiry informed the court they had not agreed and lacked one of being able to. The court asked “are you aware that it is not necessary that you should find the full contract price of these goods.” The court then suggested that the jury might read instruction number three, which permitted the finding on the second count of the petition, was in quantum meruit. Held, a sufficient ground to sustain a right for a new trial, since the colloquy permitted an inference that the court advised' a verdict for the plaintiff. •</p> <p>2. -: -: -: Objection: Exception. It was not necessary to authorize a new trial, that the defendant should except to the overruling of their objection to the colloquy, since the granting of a new trial rests in the sound discretion of a trial court.</p>

— Now. Nich If. Bradley, Judge. (1) “Parol contracts may be binding upon aggregate corporations if by agent authorized to contract, and contracts may be implied on the part of said corporations •from their corporate acts, or those of an agent whose powers are of a general character.” King v. Insurance Co., 195 Mo. 305; Baile y. Insurance Co., 73 Mo. 371; Lingenfelter v. Insurance Co., 19 Mo.

— Eon. Thomas J. Seehorn, Judge. (1) The court erred in holding that the plaintiff was not a bona-fide owner of the note. (2) The court erred, in holding that it was the duty of the plaintiff to make any inquiry as to the authority of Alfred Blaker to bind the partnership. Bates y. Forcht, 89 Mo. 121; 22 Am. and Eng.,Enc. of L. (2 Ed.), 152; 1 Bindley on Partnership (2 Am. Ed.), 290; Dietz v. Regnier, 27 Kan. 94; Bank v. Neill, 149 Fed. 714; Bank v. White, 30 Fed. 415.

— Eon. James E. Blover, Judge. (1) The court should have instructed the jury, upon this defendant’s motion, not to consider the testimony of E. A. Woodman and T. D. Montague in arriving at a verdict as to this defendant. Baustian v. Young, 152 M'o. 317; State v. Minor, 193 Mo. 597; Pryor v. Railroad, 85 Mo. App. 367; Sandige v. Hill, 70 Mo. App. 71; Sparr v, Wellman, 11 Mo. 230; Fitzgerald v. State, 14 Mo. 413; Knox v. Hunt, 18 Mo. 174; Gutzweiler v. Lock-man, 39 Mo. 91.

— Hon. Thomas J. Beehorn, Judge. (1) Plaintiff’s ticket had expired by limitation. He had no right to ride thereon, and defendant had a right to reject him. Boling v. Railroad Co., 189 Mo. 233; Lillis v. Railway, 64 Mo. 464. (2) The ticket presented to the conductor was conclusive evidence of the contract of carriage. The conductor could look only thereto. Woods v. Railroad, 48 Mo. App. 125; Percy v-. Railroad, 58 Mo.

— Hon. James H. Slover, Judge. (1) The court erred in overruling defendant’s demurrer at the close of plaintiff’s testimony and in failing to give defendant’s peremptory instruction at the close of all the testimony. Reedy v. St. Lonis, 161 Mo. 523; Tobin v. Waterloo, 131 la. 75, 107 N. W. 1031; Quinlan y. Kansas City, 104 Mo. App. 616; .Harrington v. Buffalo, 121 N. Y. 147, 24 N. E. 186; Manschevik y. Cline, 100 Pa.

— Hon. JEt. 8. liyors, Judge. (1) The acts of corporation may be proved in the same manner as acts of individuals. 10 Cyclopedia of Law & Procedure, page 1082 (3); Taussig v. Railroad Co., 166 Mo. 28; Hotel Co. v. Newman, 30 Mo. 118.

<p>BILLS AND NOTES: Endorsement: Evidence. Certain bills of exchange were endorsed with a rubber stamp. Held, they were not admissible in evidence against the acceptor, until the endorsement was proven to have been made by some one authorized to do so.</p>

— Eon. James E. Llover, Judge. (1) There is no evidence to support the verdict of the jury as to the amount of plaintiff’s damages. (2) Where damages resulting from a breach of a contract are capable of being estimated by a strict money standard, it is incumbent upon the party claiming them to give evidence of the amount of his damages; otherwise, his recovery will be confined to nominal damages. Barn-grower v. M'aack, 46 Mo.

— Eon. G. V. Bucldey, Special Judge. (1) The court erred in giving the instruction for plaintiff on the measure of damages, because said instruction authorizes the jury to find for plaintiffs the difference in the value of plaintiffs’ land before and after the fire, whereas, if the roots of the hay were destroyed or injured so that the yield for the following year or years would be lessened, the measure of damages would have been the difference in the rental value caused by…

— Eon. William E. Martin, Judge. (1) The motion for a new trial should have been overruled. Motions for new trials must be filed within four days after the verdict if the term shall so long continue; and if not, then before the end of the term. This is mandatory. E. S. 1899, sec. 803; State v. Brown, 206 Mo. 501; In re Estate Pound, 91 Mo. App. 424. (2) Respondents had no right to amend their motion for a new trial after the expiration of four days following the verdict.

— Hon. Samuel Davis, Judge. (1) The master is required to exercise ordinary and reasonable care, and provide a reasonably safe place for his servants to work. Sinburg v. Falk Co., 98 Mo. App. 546; Browning v. Caston, 107 Mo. App. 59; Glass-cock v. Dry Goods Co., 106 Mo. Ápp. 657; Bennett v. Lumber Co., 116 Mo. App. 699.

— Hon. NioJc M. Bradley, Judge. (1) No transfer of fund was made to be waived or ratified. (2) No evidence of a transfer of the fund from Whitsett to Ferguson. (3) To constitute waiver there must be both knowledge and acquiescence, something must be done or the party must forbear the doing of something. Williams v. Railroad, 153 Mo. 519; Haysler v. Owen, 61 M'o. 274; Johnson Co. v. Lowe, 72 Mo. 637. The knowledge must be actual. Thresher Co. v. Pierce, 74 Mo.

<p>Appeal from Cole Circuit Court. — Hon. William H. Martin, Judge.</p> <p>(1) The court erred in refusing to allow the plaintiff to testify as to her marriage with J. D. Collard. Green y. Green, 126 Mo. 17; White v. M’axey, 64 Mo. 552; Hoyt v. Davis, 30 Mo. App. 313; Spalding y. Conway, 51 Mo. 54; Brandon v. Dawson, 51 Mo. App. 244; Drinkhouse Est., 151 Pa. St. 294, 24 Atl. 1083. (2) The court erred in allowing the defendant to read in evidence plaintiff’s application to be áppointed a Notary Public, her appointment and bond. Plaintiff possessed the necessary qualifications. R. S. 1899, sec. 8832. Even if she were Collard’s wife she was a de facto notary. Wilson v. Krinnel, 109 Mo. 260. (3) The court erred in refusing to allow plaintiff to explain why the application for a notary’s commission was in the name of Anna C. Williamson. Kneuzel v. Stevens, 155 Mo. 280; McCarty v. Transit Co., 194 Mo. 396; Bank v. Wood, 124 Mo. 72; Johnson v. Johnson, 30 Mo. 72; La Riviere v. La Riviere, 77 Mo. 572.</p> <p>(1) Where, as in this case, an action at law is tried by the court sitting as a jury, and no declarations of law are asked or.given, the finding of the court has the conclusiveness of the verdict of a jury, and is incontrovertible on appeal. Bozarth v. Legion of Honor, 93 Mo. App. 567, and cases cited; Rogers v. Hopper, 94 Mo. App. 440; James v. Hicks, 76 Mo. App. 115; Gentry v. Templeton, 47 Mo. App. 58; Sweitzer v. Banking Co., 76 Mo. App. 8; Nelson v. Railroad, 66 Mo. App. 651; Crain v. Peterman, 200 Mo. 298; Zimmerman v. Railroad, 156 Mo. 566; Sutter v. Raeder, 149 Mo. 307; Crane v. Timberlake, 81 Mo. 431; Comer v. Statham, 173 Mo. 248; Smith v. Royse, 165 Mo. 658, and cases cited; Pearson v. Gillett, 55 Mo. App. 318. (2) The court did not err in refusing to permit plaintiff to testify to the marriage, the other party to the contract or cause of action in issue and on trial being dead. R. S. 1899, sec. ‘4652; Imboden v. Trust Co., Ill Mo. App. 231; 19 Am. and Eng. Ency. Law (2 Ed.), 1198; 30 Am. and Eng. Ency. Law (2 Ed.), 986, note 5; Rice v. McFarland, 41 Mo. App. 489; Ashhrook v. Letcher, 41 Mo. App. 369, 373; Ring v. Jamison, 66 Mo. 429; Angelí v. Hester, 64 Mo. 142; Looker v. Davis, 47 Mo. 145; Johnston v. Johnston, 173 Mo. 120; Granger v. Bassett, 98 Mass. 462. (3) The court did not err in admitting in evidence certified copies of plaintiff’s application to be appointed a notary public, her commission and bond. 1 Am. and Eng. Ency. Law (2 Ed.), 675; Schlicker v. Gordon, 19 Mo. App. 485; 1 Greenleaf on Evidence (16 Ed.), secs. 171, 195; 1 Ency. Evidence, pp. 357, 362; Bank v. Nichols, 202 Mo. 323. (4) The court did not err in refusing to alknv plaintiff to testify as to her reasons for taking out the notary’s commission in the name of Williamson. To have permitted her to- undertake to explain aAvay every damaging circumstance introduced against her Avould' have nullified the,force and effect of the statute (sec. 4652, B. S. 1899) which made her an incompetent witness, the other party to the contract or cause of action in issue and on trial being dead. Authorities cited under point 2, supra. (5) The evidence is insufficient to establish the marriage relation between plaintiff and Collard, the deceased, and the judgment is for the right party. Imboden v. Trust Co., Ill Mo. App. 220; Imboden v. Trust Co. (Mo. App.), 107 S. W. 400; Topper v. Perry, 197 Mo. 531; Ashford v. Insurance Co., 80 M'o. App. 644, 645; Cargile v. Wood, 63 Mo. 513, 26 Cyc., 872-877; 19 American and English, Ency. Law (2 Ed.), 1204, 1205, 1206; Rodgers on Domestic Relations, secs. 94, 96, 97; Schouler on Husband and Wife, p. 49; McKenna v. McKenna, 180 111. 577; Yardley’s Estate, 75 Pa. St. 207, 211; Bicking’s Appeal, 2 Brewst. (Pa.) 230; 14. Am. and Eng. Ency. Law (1 Ed.), 530;</p>

<p>ADMINISTRATOR: Partition: Unknown Heirs: Equalizing Distribution: Action: Res Adjudicata. After an intestate’s death, some of the heirs brought suit against certain other heirs, and the unknown heirs of decedent to partition his real estate. Publication was duly made, and the judgment of partition barred the interest of unknown heirs not appearing. The real estate was sold, and the proceeds distributed. Subsequently plaintiffs who did not appear to the partition suit, brought this action in the probate court for the avowed purpose of equalizing and distributing the property of the decedent, so that they may share equally with other heirs. ■Held, that the action cannot be maintained since they were parties to the partition suit, and their remedy, if any, is under section 4417 et seq., or sections 777 and 780, Revised Statutes 1899, since the partition judgment, while it remains, concludes further litigation of the question.</p>

— Eon. Thomas J. Beehorn, Judge. (1) The court erred in excluding the record of the former action against the Metropolitan Street Railway Company, (a) A claimant in an action for damages for personal injuries first defeated by the party responsible over or primarily liable, cannot in another action recover from the party in privity or secondarily liable. McGinnis v. Railroad Company, 200 Mo. 347; Delaplain v. Kansas City, 109 Mo.

— Eon. W. D. Rush, Judge. The court erred in refusing the demurrer asked by-defendant at the close of all the evidence. The taxbills were issued to Phoenix Brick & Construction Co. The plaintiff, Cushing, therefore, cannot recover on them unless he proves the allegation in his petition that bills were assigned to him. There is no such proof in the record. St. Louis v. Brinckworth, 204 Mo. 294; Dunlap v. Kelley, 105 Mo. App. 4; Bank v. Pennington, 42 Mo.

— Hon. Francis H. Trimble} Judge. The city of Excelsior Springs has the right to establish any grades on its streets it sees fit; it is a- legislative and not a judicial question. The courts have no right to interfere because the grade is inconvenient or improper —at least unless the grade is so unreasonable as to raise a presumption of fraud. Ely v. St. Louis, 181 Mo. 730, and cases cited; Thompson & Son v. Macon City, 106 Mo.

— Ho.n. Hugh Dabbs, Judge. Where there was no evidence introduced which tends to prove that the defendant intended to continue their mining operations in such a way as to endanger the plaintiff’s railway track the plaintiff cannot recover. Railroad v. JBrandau, 81 Mo. App. 8. The court cannot grant an injunction to allay the fear and apprehensions of individuals.

— Son. Wm. S. Martin, Judge. It was not shown that King, the so-called “straw boss,” had any authority either to require or dispense with the use of the rope in taking down the door in question ; or that he had any more authority than the other members of the gang of men — of which the plaintiff was one, to determine the manner in which or the means by which the doors should be taken 'down.

— Now. Hugh Dabbs, Judge. The disposition and character of plaintiff’s horse being in' issue, the court erred in excluding evidence showing plaintiff’s horse was afraid of and shied at automobiles and motorcycles, and as to being- high strung and skittish. This evidence tended to show knowledge on part of plaintiff that his horse was scary and liable to scare at a street car and run away.

— Hon. Hermann Brumback, Judge. The defendants’ demurrer to the evidence should have been sustained. Because although plaintiff knew a sewer was being put in, that piles of dirt were in the street and it was so dark he could not see them, yet he permitted his daughter to drive his horse upon the trot without exercising any care whatever, which was negligence as a matter of law. Diamond v. Kansas City, 120 Mo.

— No». D. E. Blair, Judge. Intervenor’s answer states facts sufficient to avoid tbe contract pleaded by plaintiff as a modification of tbe assigned contract between plaintiff and defendant. Wells v. Adams, 88 Mo. App. 215; Bank v. Byers, 139 Mo. 652.

— Son. Samuel Dams, Judge. The provision in the deed is'for an annuity. The provision in the deed for an annual payment to Michael Lynch, due on the 1st day of March, 1897, and upon the 1st day of March, annually, thereafter, during the life of the said Michael Lynch, and to cease upon his death, was in effect a provision for an annuity, and the rights of the parties in connection therewith are to be determined by the principles of law applicable to annuities. 1 Am. and Eng.

— Now. John G. Parle, Judge. The action is grounded on an alleged express promise by defendants to return to plaintiff the $1,200 which he had paid to them, with interest thereon. But if the petition be regarded as counting on the contract or a rescission thereof, the same result will follow. Olmstead y. Smith, 87 Mo. 602; Pursley v. Good, 94 Mo.

— Eon. John G. Parle, Judge. The verdict should be set aside because it is so contrary to the great preponderance of the evidence, and so in opposition to the undisputed physical facts and laws of motion and physical forces as to compel the conclusion that the jury failed to consider all of the evidence and were influenced by passion and prejudice, and yielded to a partisan bias. Commissioners v. Clark, 94 IJ.

— Hon. Henry L. McCune, Judge. The court erred in refusing to give defendant’s demurrer offered at the close of plaintiff’s evidence, and in refusing a similar instruction offered by defendant, at the close of all the evidence in the case. Gettys v. Transit Co., 103 Mo. App. 564; McLeland v. Transit Co., 105 Mo. App. 473; Kimble v. Railway, 108 Mo. App. 78; Hyman v. Transit Co., 108 Mo. App. 458; Hensler v. Stix, 113 Mo. App. 162; Sims v. Railway, 116 Mo..

— Son. E. E. Porter-field, Judge. Instruction No. 3 given for the defendant was proper. There was no substantial evidence that the manhole was defective, therefore there was no obligation on defendant to make repairs. Carvin v. St. Louis, 151 Mo. 331; Wright v. Gillespie, 13 M'o. App. 211; Otto v. Railroad, 12 Mo. App. 168; Montgomery v. Railroad, 181 Mo. 477; Ashby v. Gravel Road Co., Ill Mol App. 79; Sonnen v. Transit Co., 102 Mo. App. 271; Brown v. Transit Co., 108 Mo.

— Hon. Walter A. Powell, Judge. The court erred in overruling the motion to quash the execution for the reason that the money judgment against defendant (appellant) is void. It has been held that judgment for permanent alimony in a cause in which the divorce is awarded to the husband is void. McIntyre v. McIntyre, 80 Mo. 470. By statute in case of divorce “the guilty party shall forfeit all rights and claims under and by virtue of the marriage.” R. S. 1899, sec. 2929.

— Eon. James E. Slover, Judge. A passenger has no right to attempt to alight from a car at any place other than the usual place for receiving and discharging passengers. _ Jackson v. Railway, 118 Mo. 199; Jacobson v. Transit Co., 106 Mo. App. 339; Corum v. Railway, 113 Mo. App. 631; Nurse v. Railway, 61 Mo. App. 67; McCarty v. Railway, 105 M'o. App. 596; Spaulding v. Railway, 181 Mass. 170; Railway v. Mills, 91 111. 39.

— Eon. Thomas J. Beehorn, Judge. The plaintiff being tbe employee of Mrs. Bell, the tenant of the premises, cannot recover in this case against the landlord, unless the tenant herself could recover under like circumstances. Marcheck v. Elute, 113 S. W. 658; McGinley v. Trust Co., 168 Mb. 263; Peterson v. Smart, 70 Mo. 34.

<p>1. PHYSICIAN AND SURGEON: Malpractice: Instruction. In an action against a physician for malpractice it was error to ■refuse instructions which informed. the jury that defendant, as a physician, should not he held as an insurer of the success of treatment by the .“X-Ray Process,” or that it would not be attended by unexpected results, and that he was only required to have the necessary learning and experience to give the treatment in a careful and prudent manner, unless the issue is clearly tendered that there was negligence or unskillfulness in prescribing such treatment at all.</p> <p>2. -: Degree of Skill and Care Required. A physician is only required to give his patient his diligent attention and best thought and in prescribing, administering or applying treatment, to use that care and skill and prudence that an ordinarily capable doctor would use in the same or similar situation and condition or circumstances.</p> <p>3. -: Witnesses: Cross-examination. In an action against the physician for malpractice it was highly prejudicial and improper to' ask defendant on cross-examination, whether or not he took out protective insurance to guard against damages that might accrue in this or any other suit for malpractice.</p>

— Noto. A. D. Burnes, Judge. 1. The plaintiff seeks to recover here upon the theory that she actually entered the car in which she had obtained a reservation and was wrongfully refused permission to occupy it; the evidence for plaintiff and defendant shows without contradiction that the plaintiff did not enter the car on which her reservation had been made nor did she apply for it to the conductor who had it in charge; this being so she cannot recover in this action and the…

— No». Samuel Davis, Judge. Mandamus is the proper remedy where license is refused by the county court. State ex rel. v. Ruark, 34 Mo. App. 328; St. Louis v. Weitzel, 130 Mo. 600; Bean v. County Court, 33 Mo. App. 635; State ex rel. v. Baker, 32 Mo. App. 98; State ex rel. v. Meyers, 80 Mo. 601; State ex rel. v. Ashbrook, 154 M'o. 388; St. Louis v. Lemp Mfg. Co., 139 Mo. 561; State ex rel. v. Fraker, 166 Mo. 130; State v. Baldwin, 109 Mo.

— Eon. Henry L. McCune, Judge. The court should have sustained the demurrer to the plaintiff’s evidence, because in it there was not a word tending to show that F. E. House had any authority to employ O. 0. Craver for E. L. House, or that E. L. House in any way ratified any such employment after it was made. The principle is correctly declared in 23 Am. and Eng. Ency. of Law, p. 911.

<p>1. PROBATE COURTS: Jurisdiction. In a proceeding by an executor to obtain an order for the sale of real estate claimed as belonging to the estate, the probate court has no jurisdiction to try and determine the issue of title.</p> <p>2. -: -. On appeal from the probate court the circuit court must try the case anew upon the same cause of action, and neither the circuit court nor this court acquires jurisdiction on appeal of the issue, nature and extent of the estate the testatrix had in the land in controversy.</p> <p>3. -: -. While the probate court could not adjudicate title to property sought to be sold to pay debts of the estate, it could determine whether a dispute as to the title was sufficient to cause the property to be sold at a sacrifice if sold before the settlement of the dispute, and refuse the application if it so decided.</p>

— Non. Henry M. Barney, Judge. The court erred in refusing defendant’s instruction No. 1. Held: that an order of a referee in bankruptcy, or assignee allowing or disallowing a claim is a judgment, conclusive upon the parties as to the matter litigated, in any subsequent action on the same claim. Hargadine D. G. Co. v. Hudson, 122 Fed.

— Non. Henry M. Barney, Judge. The title passed when the coal was delivered at the mine, no matter what carrier was chosen, and upon presentation of 'draft respondent became liable under its contract. 1 Benjamin on Sales (1884 Ed.), 466, see. 517. The contract in this case was what is termed in legal terms a “sale,” and the interpretation of the contract depends upon intention of the parties, and the intention of the parties means there should be a Rock Island delivery.

Writ of Prohibition against Hon. James E. Goodrich, Judge of Division No. 5 of Jackson Circuit Court. The petition asking appointment of receiver stated no cause of action against the defendant corporation, sought no judgment of any character or kind against it, and asked no relief except the appointment of a receiver.

— Hon. John P. Butler, Judge. For material error apparent on the face of the record, the appellate court will reverse a cause, although no motion for a new trial, in arrest or for review, is made in the court below, M'clntire v. Mclntire, 80 Mo, 470; In re Garrison v. Trust Co., 77 Mo. App. 337; Land Co. v. Bretz, 125 Mo. 418; State ex rel. v. Scott, 104 Mo. 26; Distilling Co. y. Hubbard, 53 Mo. App. 23.

<p>Appeal from DeKalb Circuit Court. — A. D. Burnes, Judge.</p>

Order of county court hiring out prisoner set aside. (1) The county court, under section 1791, Revised Statutes 1899, has a right to provide for the employment of all prisoners who are convicted for a misdemeanor and are sentenced to imprisonment in the county jail or committed to jail for the non-payment of a fine, but it exceeded its authorized powers when it made the order hiring Pipkin to Starns and discharging him from the custody of the sheriff and jailer of Texas…

<p>Appeal from Howell Circuit Court. — Non. W. N. Evans, Judge.</p>

<p>Appeal from Greene Circuit Court (Division No. 2).— Eon. Alfred Page, Judge.</p>

— Hon. L. B. Wood-side, Judge. (1) ■ The court erred in not giving defendant’s instruction in the nature of a demurrer to the evidence, because by reason of the cpntract entered into' between plaintiffs and defendant on Angnst 5th, plaintiffs for the consideration of a reduced rate of freight released any damages growing out of defendant’s breach of the verbal contract to furnish cars on August 4th. Hoover v. Railroad, 113 Mo. App. 688; Gann v. Railroad, 72 Mo.

— Eon. James T. Neville, Judge. (1) In the sale of a chattel, any representation or positive affirmation of quality and condition of the thing sold, and made with the intention of being relied on, is an express warranty, for breach of which an action wall lie. Childs v. Emerson, 117 Mo. App. 1 c. 675; Haines v. Neece, 116 Mo. App. 1. c. 510; Young v. Vannatta, 113 Mo. App. 1. c. 558; Danforth v. Crookshanks, 68 Mo. App. 1. c. 316; Carter v. Black, 46 Mo. 1. c. 385.

— No». James T. Neville, Judge. (1) The obligation, although in form, a joint one, under the express provisions of the statutes of this State is several as well as joint. The statute provides: “All contracts which, by the common law, are joint only, shall be construed to be joint and several.” Sec. 889, R. S. 1899.

<p>1. CRIMES AND PUNISHMENT: Local Option: Conflict of Laws: Suspension or Repeal. The defendant was indicted for' a violation of section 3047, R. S. 1899, committed in October, 1907. ■ Afterward but before the trial a “local option”' election resulted in favor of prohibition which became effective in December, 1907. Held, that the adoption of prohibition after the date of the offense but before the trial does not relieve the defendant of criminal responsibility and that section 2392, Revised Statutes 1899, has no application for the reason that the adoption of prohibition was to suspend, not to repeal, the act under which defendant was convicted. [Overruling State V. Winfield, 65 Mo. App. 662.]</p>

— Hon. H. M. Barney, Judge. From this agreed statement it will he seen that there is but one single question for the court to decide,… Held: that garnishment, has the effect to place the property in the garnishee’s hands, “in the custody of the law.” Drake on Attachments, 5th Edition, Section 251; and Judge Marshall in the case of Brashear v. West, 7 Peters U. S. 608, or 10 Curtis 1. c. 602, said in a garnishment case: “Still the property was ‘in the custody of the law.’…

<p>Appeal from Grundy Circuit Court. — Hon. G. W. Wanamalcer, Judge.</p>

— Hon. A. D. Burnes, Judge. The plaintiff demanded in his petition and was given judgment for the following item of damage: For decline in the market, $74.67, being fifteen cents *m the hundred pounds. This evidence tends to show the decline alleged in the petition, but it does not show, nor does it appear any where, in the evidence, what the plaintiff actually sold his cattle for.

<p>1. CARRIERS: Vendor: Delivery: Shipping Instructions. It is a well established rule that when goods are ordered and no specific instructions are given in regard to shipment, a delivery to the usual carrier for the purchaser with proper directions, is a constructive delivery to the purchaser and such goods immediately become the property of the purchasers, subject only to the right of stoppage in transitu:</p> <p>2. -: -: Agents. The rule is based on the legal fiction that in ordering goods to be transported by common carrier, the vendee by implication appoints the vendor his agent to select the carrier usually employed and to contract with such carrier in the usual manner, then the carrier becomes the agent of the vendee to receive the goods.</p> <p>3. -: -: Presumption: Value of" Goods. It is the duty ot the vendor to enter into such a contract with the carrier as will afford the vendee a remedy for the full value of the goods If they ‘be negligently lost by the carrier.</p>

— Eon. Argus Cox, Special Judge. There is no evidence that the receiver of the Bates National Bank ever had the notes in controversy herein in his possession, and the court erred in finding that the receiver was in possession of the notes. Kirk v. Kane, 87 Mo. App. 274. Delivery and acceptance are essential prerequisites to the validity of a promissory note. Carter v. McOlintock, 29 Mo. 464; Welch v. Dameron, 47 Mo. App. 221.

<p>APPEALS: Crimes: Record. Where a complete record of a criminal case, including the evidence, instructions, verdict, judgment, motions for new trial and in arrest of judgment, the Courts ruling thereon and the order granting an appeal, is presented to the court, it is sufficient notwithstanding there is no abstract of the case or brief or argument filed by appellant.</p>

— Hon. G. W. Wanamalcer, Judge. The undisputed evidence shows that the defendant Vincent Cooksey owed George Cooksey for the land sold to Robinson, who was to he paid or was entitled to the proceeds of the land when sold, that the garnishee was the agent of George Cooksey and as such had received and held the f1,800 draft issued by the Cook & Vencill -Bank, payable to George Cooksey, the proceeds of the Vincent Cooksey lands and other lands of George Cooksey at the of the…

— JEToíi-. G. A. Mosman, Judge. The court committed error in sustaining plaintiff’s motion for new trial, for the reason that there was no evidence of negligence upon the part of the. railway company… Held: because it failed to abate the nuisance or prohibit its codefendant, railway company, from committing the nuisance. Kiley v. Kansas City, 87 Mo. 103; Loth v. Theatre Co., 197 Mo. 328; Butz v. Cavanaugh, 137 Mo. 503.

— No». W. N. Martin, Judge. The court erred in admitting, over the objection of the defendant, the testimony of the witness Moss, relative to the alleged conversation of the witness with defendant’s witness, Conductor Schaeffer. The question asked Moss did not conform to the one asked Schaeffer, nor did it pertain to any material issue in the case.

— Eon. W. 0. Ellison> Judge. “That the petition is insufficient to support a judgment.” Such an objection can only be interposed at the trial, where the petition fails altogether to state any cause of action and not to the case where a cause of action, is defectively stated. Clem v. Eailroad, 74 Mo. 298; Crane v. Eailroad, 78 Mo. 588; Bank v. Leyser, 116 Mo. 51; Hurst v. Ash Grove, 96 Mo. 173.

— No». O. A. Mosman, Judge. The court erred and abused its discretion, if it had any, in striking from the files the appellant’s amended answer and in refusing to permit him to file amended answer tendered in his “motion for leave to file amended answer,” which set forth good, lawful and legal defenses to the cause of action alleged in plaintiff’s petition.

— Hon. H. M. Ramey, Judge. The demurrer to plaintiffs’ evidence, requested by this appellant at the close of plaintiffs’ case, should have been sustained. The plaintiffs failed to prove that the shipment was delivered to the defendant, The Kansas City Southern Railway Company, and that it ever received the stock for shipment. Moore on Carriers, sec. l'O, p. 466; Gray v. Railroad, 119 Mo. App. 149; Myers v. Railroad, 120 M'o. App. 288.

<p>1. PUBLICATION OF NOTICE: Local Option Election. The publication of a notice of a local option election to prohibit the sale of liquor, in a newspaper, commences when the paper begins to reach the public, and not when printed and deposited in sacks in the postoffice prior to distribution.</p> <p>2. DATE OF PUBLICATION: Newspaper. A newspaper dated the 10th of January and given out to the public on that day, is not published until that day though printed and taken to the postoffice at night the day before.</p> <p>3. MANDAMUS: Remedy. If applicant for dramshop license is qualified and presents proper petition the duty is mandatory on county court to grant the license.</p> <p>4. OFFICIAL PAPER. If two papers are designated to publish the notice it must be published in each the requisite length of time and the fact that one of the papers is the official paper of the city, in which the publication was properly made, will not suffice unless it is likewise properly published in the other.</p> <p>j>. WORDING OF NOTICE. As to length of time of publication there is no difference in the meaning of the expressions “for four full weeks” and “for four weeks.”</p>

— Hon. L. J. Eastin, Judge. When the facts are disputed, or undisputed, if different minds might honestly draw different conclusions from them, the case should properly be left to the jury, and in order to withdraw a case from the jury the facts should not only be undisputed, but the inference to be drawn from the facts must also be undisputed. McLain v. Railroad, 100 Mo. 284; Cliouquette v. Barada, 28 Mo. 491; Baldwin v. Springfield, 141 Mo. 205.

<p>STREET RAILWAYS: Contributory Negligence: Humanitarian Doctrine. An old woman carrying a basket and wearing a sunbonnet was crossing street railway tracks and was guilty of negligence; but as the motorman saw or should have seen her peril in time to have stopped the car before striking her, the railway company is liable under humanitarian rule.</p>

— Hon. Chas. J. Stewart, Judge. Defendant is an assessment life insurance company-under the Missouri statute, because it appears from the contract as practically construed by the parties that it has no level and fixed premiums. McCoy v. Bankers Life Assn., 134 Mo. App. 35; Westerman v. Supreme Lodge, 196 Mo. 670; Williams v. St. Louis Life, 97 Mo. App. 454; Hayden v. Mut. Reserve, 98 Fed. 200; Armstrong v. Brotherhood, 112 S. W. 24, 3 Mo.

— Non-. Chas. Bieioart, Judge. Courts have authority, upon oral evidence alone, to make a nunc pro tune entry of any judgment or order, if such entry he made before the end of the term at which such judgment or order was rendered. McGonigle v. Bresnen, 44 Mo. App. 425; State v. Jeffors, 64 Mo. 379; Ross v. Railroad, 141 Mo. 396; State v. Libby, 203 M'o. 599; State v. Gartrell, 171 Mo. 504; Saxton v. Smith, 50 Mo. 491; York v. Stigall, 204 Mo. 407; Dawson v. Waldheim, 89 Mo.

Louis County Circuit Court. — Eon. Jno. W. McElhinney, Judge. The mayor had no authority under the law to appoint plaintiff, B. F. Andrae, collector of the revenue of the city of Kirkwood, and his action in so doing was utterly void.

— Eon. James D. Barnett, Judge. A presumption based on another presumption; an inference drawn from another inference, are not competent evidence to submit to a jury. They have no probative force, and it is error for the court to refer any .such fact proposition to a jury for its decision upon such evidence. Citations infra.

Appealed from the St. Charles Circuit Court. — Eon. James D. Barnett, Judge. Sureties on a statutory bond are liable for the malicious acts of the officer. Warrensburg v. Miller, 77 Mo. 56; State y. Schacklett, 37 Mo. 280; 1 Sedg. on M. of D., sec. 370; State ex rel. Claudiu, 1 Mo. App. 555; Russell y. Moore, 19 Mo. 369; Rollins v. State, 13 Mo. 437; State ex rel. v. Powell, 44 Mo. 436; Trig v. Harris, 49 Mo. 176.

Louis City Circuit Court. — Hon. Geo. H. Shields, Judge. When in a motion for a new trial evidence is produced showing conclusively that the decision should have been in favor of the losing party, and that the justice and right of the cause is with the losing party and not with the winning party, the court should grant a new trial in all cases where a reasonable showing is made why the evidence produced in the motion for a new trial was not offered upon the trial of the…

Louis City Circuit Court. — Hon. Robert M. Foster, Judge. Judicial discretion, or discretion of the court, is a sound judgment to be exercised according to the rules of law and fixed legal principles. Judicial discretion, or discretion of the court, is defined in 14 Cyc. 383, as follows: The appellate courts can and will review the orders and judgments of the trial court involving the exercise of judicial discretion.

— Hon. Charles D. Stewart, Judge. There is no patent or latent ambiguity in this contract and.it was the duty of the court to construe the contract and say what the parties meant, and it was error to submit the construction to the jury. Mathews v. Danahy, 26 Mo. App. 660; Greason y. Railroad,. 112 Mo. App. 116; Mantz v. Maguire, 52 Mo. App. 187; Fruin y. Railroad, 89 Mo. 397; Chapman v. Railroad, 114 Mo. 542; Soap Works v. Sayers, 55 Mo.

Louis City Circuit Court.— Hon. Virgil Rule, Judge. In the absence of any specific provision in the Attorney’s Lien Act (Acts 1901, page 46), as to the manner of service of notice, the general provisions of the statutes (Sec. 998, R. S. 1899, and sec. 995, as amended by Act of March 23, 1903 [Acts 1903, p. 115]), require personal service on the corporation in the manner pointed out. This point is clearly decided in Dalton v. Railway, 113 Mo.

Louis City Circuit Court. — Hon. Chas. C. Allen> Judge. Tbe court erred in refusing tbe instructions offered by defendants in tbe nature of a demurrer to tbe evideuce at the close of plaintiff’s case and at the close of the whole case. Buesching v. Gas Light Co., 6 Mo. App. 85; Larkin v. O’Neil, 119 N. Y. 221; Kean v. Schoening, 103 Mo. App. 77.

— Eon. Eenry G. Rileyf Judge. In Bank v. Doark, 75 Mo. App. 332, an attachment case begun before a justice of Missouri township, writ levied in Cedar township, and it did not appear that the townships joined.

Louis City Circuit Court. — Hon. Matthew Given Reynolds, Judge. The court erred in not sustaining defendant’s motion to elect because the positions assumed by the plaintiff in his petition were inconsistent, irreconcilable and tbe proof of one necessarily disproved tbe other. Jordan v. Transit Co., 202 Mo. 426. Plaintiff cannot recover because be has failed to prove that tbe defendant took tbe assets of tbe Transit Company without any or adequate consideration.

— Eon. W. N. Evans, Judge. First, the invoice, approval and acceptance of the merchandise by the defendants as a part of the contract price of their farm were conditions precedent to the plaintiffs’ right to recover on the contract. Smoke Preventer Co. v. St. Louis, 205 Mo. 242; Williams v. Railway, 112 Mo. 488; Chapman v. Railway, 114 Mo. 549; Thomas v. Ramsey, 47 Mo. App. 99; Monks v. Miller, 13 Mo.

— Now. David N. Eby, Judga When a verdict can be accounted for only on tbe ground of ignorance, partiality, prejudice or passion it will not be permitted to stand. Lang v. Moore, 107 Mo. 334, 17 S. W. 810; Carutb v. Richardson, 96 Mo. 186, 9 S. W. 633; Avery v. Fitzgerald, 94 Mo. 207, 7 S. W. 6; Garrett v. Greenwell, 92 Mo. 120, 4 S. W. 441; Spohn v. Railroad, 87 Mo. 74; Whitsett v. Ransom, 79 Mo. 258.

— No». James T. Neville, Judge. All the defenses and contentions of the respondents have been decided adversely to them and as to this case are res judicata. Langston v. Canterbury, 173 Mo. 122; State ex rel. v. Canterbury,. 124 Mo. App. 241. Appellant’s cause of action is not barred by tbe seven-year statute of limitations and tbe learned trial court erred in so bolding. Johnson v. Johnson, 72 Mo.

— Hon. Henry G. Riley, Judge. There is not in all the testimony one witness who undertakes to state the condition of the horses when delivered to defendants’ steamboat; there is no bill of lading in evidence to show the condition of delivery to defendants, nor any one who'saw the horses’ condition when delivered.